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On February 2, 2009,Delaware Superior Court Judge Jerome O. Herlihy dismissed Plaintiff’s malicious prosecution claim against Kohl’s Department Stores, Inc., holding, as a matter of law, that Kohl’s had “probable cause” to have Plaintiff arrested.

On February 2, 2009, in the Delaware Superior Court case of Quatarone v. Kohl’s Department Stores, Inc., The Honorable Jerome O. Herlihy dismissed Plaintiffs’ malicious prosecution claim against defendant, holding as a matter of law, based upon undisputed facts, Defendant had “probable cause” to have Plaintiff arrested.

In his well reasoned opinion Judge Herlihy first set forth the elements of a malicious prosecution claim:

“To make a claim of malicious prosecution a plaintiff must prove that: (1) there must have been a prior institution or continuation of some regular judicial proceedings against the plaintiff in the action for malicious prosecution; (2) the former proceedings must have been by, or at the instance of the defendant in the action for malicious prosecution; (3) the former proceedings must have terminated in favor of the defendant therein, the plaintiff in the action for malicious prosecution; (4) there must have been malice in instituting the former proceedings; (5) there must have been want of probable cause for the institution of the former proceedings; and (6) there must have been injury or damage resulting to the plaintiff from the former proceedings.”

Judge Herlihy noted that the parties agreed that Plaintiff had met three of the six elements. “The disputed elements are whether: (1) Kohl’s was the initiating party of the underlying criminal action against Quartarone; (2) the shoplifting charge against Quartarone had sufficient probable cause at the inception of the arrest; and (3) whether Kohl’s actions throughout these proceedings were done with malice. The most contentious and difficult issue for Quartarone to establish is whether sufficient probable cause was present at the time of his arrest and when his shoplifting trial began.”

Judge Herlihy embarked upon a thorough review of the prior Delaware case law concerning malicious prosecution, and found it wanting and unclear as to whether a jury or a judge or a combination of the two makes a determination as to the existence of “probable cause”. The first reported Delaware Supreme Court case is the pre-civil war case of Wells v. Parsons, 3 Del. (1 Harr.) 505 (Del. 1842) which “held that probable cause was ‘a mixed question of law and fact; the facts to be found by the jury, and the court to decide whether they amount to probable cause.’,” The next reported case, Plummer v. Collins, 77 A. 77 (Del. Super. 1910), “In sum, the Court in that case treated the question of probable cause within a claim of malicious prosecution as a pure question of fact for the jury.” This case was followed in Brown v. Cluley, 179 A.2d 93 (Super. Del. 1962). In Stidham v. Diamond State Brewery, Inc., 21 A.2d 283 (Del. 1941), the Court held by implication that when there are undisputed facts the court may rule as a matter of law upon the existence of “probable cause”. A combination of Wells and Stidham were followed in the most recent Delaware court case of Wilson v. Draper-King Cole, Inc., 1986 WL 3638 (Del. Super. Mar. 7, 1986). Judge Herlihy following Wells, Stidham and Wilson decides that the proper standard for ruling as to whether or not there was sufficient “probable cause” “in a malicious prosecution claim is a mixed question of law and fact.”

Relying upon the above standard Judge Herlihy decides that in the case sub judice the essential facts are undisputed and rules as a matter of law that Defendant Kohl’s had sufficient probable cause to have the Plaintiff arrested.

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